Open access to PDF reprint files in repository allowed?

Our research organization is attempting to reduce paper storage. Over the years we have legally purchased reprints paying copyright fees. Will we be allowed to store PDF format reprints on our in-house network and allow technical staff access to these articles without copyright infringement? Would we be allowed to scan legally obtained paper copies and store them as accessible PDF files without copyright infringement? Or would be liable for additional copyright fees every time someone opened these files? We do hold a site license through Copyright Clearance Center. My suspicion is that we may need to verify copyright terms for each title before storing them on our internal network and weed out any not included under the electronic rights portion of our license.

February 20, 2007 @ 8:50amAFry says:

I don't use the Copyright Clearance Center, so my knowledge of them is limited. However, I just checked their web site. If you have what they call an Annual Copyright License, then I think you legal. With such a license you can "Store online articles on your computer hard drive or a network drive" and "copy and distribute portions of copyrighted works via e-mail, handouts, intranet postings and fax."

But what if you don't have the license?
I think what you want to do is legal, but the copyright holders will almost certainly disagree. I wouldn't be suprised if some of my fellow CAN team members disagree. Whether or not a judge would disagree cannot be determined unless you or someone in a situation extremely similar to yours is sued.

There is a case with some similarities to yours: Texaco vs. American Geophysical Union. Texaco passed around journals and individual researchers made copies of the articles that they wanted. Unfortunately for you, Texaco lost that case.

I think you have two issues to consider:scanning and using your network. . I'm going to consider whether each of these issues is a fair use using the four factors from the law which are, briefly, character of use, nature of work, amount used, market effect). However, I think the first 3 factors are constant.

Character of use: Are you a non-profit? If so, I think this factor clearly works in your favor. If not, I think this factor clearly works against you. I don't remember exactly what Texaco said, but Texaco tried to argue that the researchers didn't generate profits, but the court found that because that research supported profit generating activities, the use was commercial.

Nature of work (creative vs. factual): I suspect that you are using journal articles and things of a similar nature. No novels, movies, songs, or other highly creative forms. If so, I think that this factor probably works in your favor. However, I usually make an initial fair use determination assuming that this factor works against me. If I determine that my use is unfair, I reevaluate my assumption here.

Amount used: I'm sure you want 100%, so amount used works against you.

Market effect:
First, can you convert a copy to a PDF, ignoring the access issue? Many people would argue that you cannot. I believe that most copyright holders firmly believe that you cannot. The argument they use is that if you can purchase it or purchase permission, then you should. I believe this is a circular argument. Fair use means you don't need permission, so you cannot assume that you do need permission when deteriming fair use. Furthermore, you cannot assume that the market is affected when determining the effect on the market. It seems ludicrous to me to suggest that you have to repruchase your entire library, and I don't think anyone would disagree if computers didn't exist and we were talking about converting to microfilm or microfiche.

What about the network? Almost everyone will tell you that you are distributing the articles by making simultaneous use possible. However, I'd argue that you cannot asssume a worst-case scenario when evidence is available to determine the actual scenario. You should be able to determine exactly how many simutaneous users you have. If suspect that the number of articles being viewed simultaneously is virtually zero. In a print world, you would purchase the number of copies you actually need, not the number of copies needed to provide access to everyone. I think the same rules should apply to online copies. If there's no reason to buy multiple copies, than you cannot assume that sales have been lost when determining the market effect.

If you keep track of simultaneous uses and purchase multiple copies for truly high demand items, then I think your use if fair. Whether or not a court will agree with me is open to debate. The copyright holders will almost certainly disagree, but your ability to demonstrate trivial simultaneous use may convince them not to sue.

If you control your system in some way to make simultaneous use impossible, then I think your use is clearly fair, although many will disagree.